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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-AA-1481

BURNICE STACKHOUSE, PETITIONER,

V.

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.

Petition for Review of an Order of the District of

Columbia Department of Employment Services

Compensation Review Board

(CRB-108-13)

(Submitted January 13, 2015 Decided March 19, 2015)

Matthew Peffer was on the brief for petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, 

Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Mary L. 

Wilson, Senior Assistant Attorney General, were on the brief for respondent.

Before EASTERLY and MCLEESE, Associate Judges, and KING, Senior Judge.

MCLEESE, Associate Judge: Petitioner Burnice Stackhouse seeks review of 

an order denying him workers’ compensation benefits for the period between a 

scheduled medical examination that he missed and a later medical examination that 

he attended. The Compensation Review Board (“CRB”) decided that Mr. 

Stackhouse was not entitled to benefits during that period. We affirm.
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I.

The following facts are undisputed in this court. Mr. Stackhouse was a 

sanitation worker for the District of Columbia Department of Public Works 

(“DPW”). In 1993, Mr. Stackhouse injured his left ankle and his back in a workrelated incident. He has not thereafter returned to work and, with some 

interruptions not relevant here, has been receiving workers’ compensation benefits 

since the incident. 

 

In August 2012, Mr. Stackhouse was notified by regular and certified mail

that, if he wished to continue to receive benefits, he was required to attend a

medical examination on September 6, 2012. A copy of the notice was also faxed

to Mr. Stackhouse’s attorney. Mr. Stackhouse did not claim the certified letter, 

which was returned to DPW. The letter sent by regular mail was not returned. Mr. 

Stackhouse did not attend the examination, so DPW notified him that it had 

suspended his benefits. After receiving the notification that his benefits had been

suspended, Mr. Stackhouse contacted DPW, and another medical examination was 

scheduled for October 11, 2012. Mr. Stackhouse attended that examination, and 

DPW reinstated his benefits beginning on October 11, 2012. 
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Mr. Stackhouse filed a claim seeking benefits for the period from September 

6, 2012, to October 11, 2012. After a formal hearing, an Administrative Law 

Judge (“ALJ”) found that Mr. Stackhouse received notice of the first examination. 

Mr. Stackhouse has not challenged that ruling. The ALJ also concluded that Mr. 

Stackhouse was not entitled to receive retroactive benefits for the period of 

suspension. Mr. Stackhouse requested review of that conclusion, and the CRB 

affirmed. Specifically, the CRB interpreted the applicable statute and regulation to 

preclude retroactive payment of benefits suspended due to a claimant’s failure to 

submit to a medical evaluation. See D.C. Code § 1-623.23 (d) (2012 Repl.) (right 

to compensation suspended until claimant submits to medical examination; period 

of refusal deducted from period for which compensation is payable); 7 DCMR 

§ 124.9 (2015) (benefits reinstated as of date of compliance). 

II.

Mr. Stackhouse argues that the CRB erred in finding that he was not entitled 

to retroactive payment of the suspended benefits. We must defer to the CRB’s 

reasonable interpretation of statutes that the CRB is charged with administering. 

See, e.g., Pierce v. District of Columbia Police & Firefighters’ Ret. & Relief Bd., 
4

882 A.2d 199, 205 (D.C. 2005). We find the CRB’s interpretation of the 

applicable provisions to be reasonable. 

Section 1-623.23 of the D.C. Code requires public employees receiving 

workers’ compensation benefits to submit to reasonable physical examinations by 

a physician chosen by the District. D.C. Code § 1-623.23 (a). “If an employee 

refuses to submit to . . . examination, his or her right to compensation . . . is 

suspended until the refusal . . . stops.” D.C. Code § 1-623.23 (d). If an employee 

initially refuses but then does submit, “the period of the refusal . . . is deducted 

from the period for which compensation is payable to the employee.” Id.

In concluding that Mr. Stackhouse was not entitled to retroactive benefits, 

the CRB focused primarily on the language in D.C. Code § 1-623.23 (d) providing 

that the period of suspension “is deducted from the period for which compensation 

is payable to the employee.” The CRB interpreted that language to imply that the 

right to benefits was lost during the period of refusal, not that the right was 

retroactively reinstated once the period of refusal ended. The CRB found support 

for this interpretation in 7 DCMR § 124.9, which provides that “benefits shall be 

reinstated as of the date of compliance,” but makes no mention of retroactive 

payments. 
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We conclude that the CRB reasonably interpreted the language at issue. We 

note, moreover, that the federal Employees’ Compensation Appeals Board 

(“ECAB”) has interpreted identical language in the Federal Employees’ 

Compensation Act to preclude retroactive payment of workers’ compensation 

benefits that were suspended for failure to submit to a medical examination. See 

Saviolidis, 37 E.C.A.B. 174, 174-76 (1985) (interpreting 5 U.S.C. § 8123 (d)

(2012)). As the ECAB explained, “The plain meaning of this [provision] is that 

compensation for the period during which an employee refuses to undergo a 

reasonably requested medical examination by the Office is forfeited.” Id. at 175. 

We find the ECAB’s interpretation of an identical federal statute persuasive. Cf., 

e.g., Williams v. United States, 878 A.2d 477, 481 (D.C. 2005) (when interpreting 

local statute, “this court will look to federal cases interpreting” nearly identical 

federal statute).

Mr. Stackhouse argues that the CRB’s interpretation is unreasonable, 

making two principal points. First, he argues that the word “suspended” 

necessarily implies a temporary interruption or deferral of payment of benefits, not 

a permanent loss of the suspended payments. Even if Mr. Stackhouse were correct 

on that point, however, section 1-623.23 (d) does not merely provide for the 
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suspension of the right to payment of benefits. In a separate sentence that does not 

use the word “suspended,” section 1-623.23 (d) states that the period of refusal is 

to be deducted from the period for which compensation is payable. In light of that 

sentence, the CRB reasonably interpreted section 1-623.23 (d) as a whole to 

foreclose retroactive payment of suspended benefits. See generally, e.g., S.M. v. 

R.M., 92 A.3d 1128, 1137 n.11 (D.C. 2014) (“a statute should be read as a 

harmonious whole”) (internal quotation marks omitted).

Second, Mr. Stackhouse argues that precluding retroactive payment of 

suspended benefits would be inconsistent with the “humanitarian purpose” of the 

workers’ compensation statutes to provide needed benefits to employees injured in 

work-related accidents. See McCamey v. District of Columbia Dep’t of Emp’t 

Servs., 947 A.2d 1191, 1197 (D.C. 2008) (“This court follows the principle that 

workers’ compensation statutes should be liberally construed to achieve their 

humanitarian purpose.”) (internal quotation marks omitted). More specifically, 

Mr. Stackhouse argues that he was always medically eligible to receive benefits

and that all of his benefits should therefore be restored to him. Mr. Stackhouse 

makes a reasonable point. The District of Columbia responds, however, that 

providing for forfeiture of suspended benefits serves important purposes, including 

giving employees an incentive to comply with the obligation to submit to 
7

reasonable medical examinations and permitting timely determinations of 

eligibility to receive benefits. Cf. Brown v. District of Columbia Dep’t of Emp’t 

Servs., 83 A.3d 739, 749-50 (D.C. 2014) (in upholding CRB’s interpretation of 

statute providing for suspension of workers’ compensation benefits to privatesector employees who refuse to cooperate with vocational rehabilitation, court 

notes that CRB’s interpretation “is consistent with the evident statutory goal of 

providing a powerful incentive to employees to cooperate”). The CRB’s 

interpretation reflects a reasonable resolution of these conflicting considerations. 

See generally Mason v. District of Columbia Dep’t of Emp’t Servs., 562 A.2d 644, 

648 (D.C. 1989) (“when both the [agency] and the petitioners make cogent though 

conflicting arguments concerning the proper construction of the statute . . . we 

defer to [the] agency's interpretation”) (internal quotation marks omitted).

III.

Mr. Stackhouse also argues that the failure to provide him retroactive

benefits constitutes a taking without just compensation in violation of the Fifth 

Amendment. Mr. Stackhouse did not make this argument to either the ALJ or the 

CRB.

Administrative and judicial efficiency require that all claims be first 

raised at the agency level to allow appropriate development and 
8

administrative response before judicial review. Our consideration of a 

claim raised for the first time on appeal deprives the administrative 

agency of its right to consider the matter, make a ruling, and state the 

reasons for its action. Therefore, in the absence of exceptional 

circumstances, we will not entertain a claim that was not raised before 

the agency.

Hill v. District of Columbia Dep’t of Emp’t Servs., 717 A.2d 909, 912 (D.C. 1998). 

Although Mr. Stackhouse does not identify any circumstance warranting an 

exception to this general principle, a party can be excused for failing to raise a 

claim before an administrative agency if the agency lacked authority to decide the 

claim. See generally, e.g., District of Columbia Metro. Police Dep’t v. Fraternal 

Order of Police/Metro. Police Dep’t Labor Comm., 997 A.2d 65, 82 (D.C. 2010). 

Moreover, this court has suggested that there may be limits on the authority of 

administrative agencies to resolve certain constitutional issues. Cf., e.g., Rhema 

Christian Ctr. v. District of Columbia Bd. of Zoning Adjustment, 515 A.2d 189, 

197 (D.C. 1986) (expressing doubt as to whether Board of Zoning Adjustment 

could rule on constitutionality of zoning regulations). It is not clear that Mr. 

Stackhouse’s takings claim would have been outside the CRB’s authority to 

decide. Cf. Horne v. Department of Agric., 133 S. Ct. 2053, 2063-64 (2013)

(takings claim properly raised before agency). We need not decide these issues. 

Even assuming that Mr. Stackhouse’s takings claim is properly presented in this 

court, Mr. Stackhouse cites no authority suggesting that an agency commits an 

unconstitutional taking by denying benefits to a claimant who fails to comply with 
9

reasonable procedural requirements. Nor do we view Mr. Stackhouse’s takings

claim as creating “serious constitutional doubt” warranting rejection of the CRB’s

interpretation of the provisions at issue. See generally, e.g., Mack v. United States, 

6 A.3d 1224, 1233-34 (D.C. 2010). 

The order of the CRB is therefore 

Affirmed.